A place for a tired old woman to try to figure things out so that the world makes a bit of sense.

Thursday, February 16, 2006

Looking For Ways to Give In To the Regime

I simply do not understand why Congress and the press just don't get what is wrong with the NSA spying on Americans without a warrant. Have our schools been so bad for so long that even rudimentary understanding of the US Constitution is lacking by adults who didn't have the glorious benefits of No Child Left Behind? Or has this nation been so humbled by fear that the Bill of Rights is now irrelevant because it refers to citizens instead of sheep? Sadly, the Washington Post in an editorial seems to think that all will be well if Congress and the White House just talk to each other more often on this issue.

CONGRESS IS feeling its way gingerly as it contemplates the Bush administration's extralegal program of domestic surveillance. That's not surprising. The administration, which kept the program secret from all but eight members of Congress until recently, insists that any congressional inquiry could help the terrorists who are the ostensible targets of the surveillance.

One essential prerequisite to finding a solution is to have enough information. The administration, after a period of resistance, gave House and Senate intelligence committees some information last week, but it's far from clear that legislators know enough to act responsibly -- or that they are willing to insist on getting the information that they need. What does the program entail and why is it not, as the administration contends, feasible to comply with the requirements of the Foreign Intelligence Surveillance Act? How many Americans have been subjected to surveillance? For how long? Has the program proved valuable, or has it inundated investigators with too many false leads? What agencies are privy to the information that is collected? What steps are taken to minimize dissemination of surveillance that doesn't bear fruit -- and to scrub the record of leads that prove to be blind alleys? What procedures are in place to make certain the intelligence is not abused?

...a thorough scrubbing, by members and staff cleared for and versed in intelligence-gathering, is essential to achieving the truly critical goal: bringing the operation under a legal framework that includes sustained and rigorous outside oversight. To argue that an investigation is warranted under these circumstances is not to presuppose wrongdoing but simply to point out that Congress cannot effectively do its job in the dark.

While it's premature to consider what legislation might be appropriate, some proposals that have already been put forward strike us as heading in the right direction -- if not quite there yet. Sen. Arlen Specter (R-Pa.) wants the special court that oversees FISA to review the program and determine its constitutionality -- an odd role for an admittedly unusual court. Sen. Mike DeWine (R-Ohio) wants to exempt the program from FISA and merely have the administration regularly brief a small group of lawmakers; this strikes us as not nearly rigorous enough.

But they are right to be groping for legislative solutions. As much as the administration would prefer otherwise, it is not acceptable simply to have this program continue in the existing legal and regulatory vacuum. [Emphasis added]

First, the program is not "extralegal," it is illegal insofar as it allows warrantless searches. Legislation which allows for that is itself unconstitutional.

Second, while the editorialist has asked a lot of good questions, it is doubtful that this regime has any intention of answering any of them. Even with the answers, however, Congress cannot and should not even try to cooperate with a program that by its very nature is a violation of the Bill of Rights.

Third, the program does indeed require vigorous outside oversight, which the current FISA law provides. Guidelines for that oversight are provided for in the Constitution and by two hundred plus years of Supreme Court interpretation. The oversight of an administration program is granted to the courts, not to Congress. There is a reason for that pesky third element of government.

Fourth, this program does not exist in an "existing legal and regulatory vacuum." That may be what the current regime would like us all to think, but it is simply not true, and to frame the issue in the regime's language of choice is to admit that democracy is simply not viable in the face of a nebulous threat.

The editorialist suggests that any such investigation need not "presuppose wrongdoing." When the President of the United States freely admits that he has authorized warrantless searches of Americans, contrary to the FISA law and contrary to the US Constitution, and states that he will continue to do so, Congress had better go into these hearings with the presupposition of wrongdoing. And if this Congress doesn't, then I surely hope the sheeple wake up from their post 9/11 drowse long enough to throw all of those Congress Critters out come November.

1 Comments:

Thanks for saying it. I agree that the warrentless searches are clearly illegal.

The administration relies on a lot of bullshit, bluff, bluster and bullying in order to do whatever the hell it wants. But breaking the law is still breaking the law, and this should be clearly stated.

My fav quote- Spector says that if Gonzolas thinks there is some legitimate argument for this illegal program, he must be "smoking Dutch Cleanser". So there is some hope...